Ishtiaq Ahmad vs The State
1987 Latest Caselaw 54 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) The appellant was convicted under section 436 Indian Penal Code by an order dated 21-4-86 and was sentenced to undergo rigorous imprisonment for three years with fine of Rs. 500.00 and in default of payment of fine the appellant was directed to undergo further rigorous imprisonment for four months. The appellant has made a grievance against the said conviction and sentence.

(2) Briefly staling the charge against the accused is that on 26th November 1984 at about 5.45 Pm the appellant committed mischief by setting on fire a Jhuggi belonging to one Smt. Veer Wati near house No. 27 Sarai Kaley Khan. A report in respect of this incident allegedly was first conveyed to the police control room on telephone by someone wherein no mention about the accused having set the Jhuggi on fire has been made. The only words used in this document Ex. Public Witness 6/A is that somebody was quarrelling after getting drunk. It was this information actually which brought the concerned police officer on the sconce of incident where statement of one Rumal Public Witness 4 was recorded who for the first time told the police that the appellant has set Veer Wati's Jhuggi on fire and he together with Sohan Lal Public Witness 5 had seen the appellant committing the offence and apprehended him. It was also disclosed by Public Witness 4 Rumal that after the appellant set the jhuggi on fire they raised cries which attracted their neighbours who helped in extinguishing the fire by sprinkling water.

(3) At trial Public Witness 4 Rumal and Public Witness 5 Sohan Lal were examined by the prosecution as two star witnesses in respect of the actual incident. Veer Wati, who has been examined Public Witness 3 was not present at the scene of incident at the time of alleged incident but she does state that when she returned at 7 Pm she found her Jhuggi having been burnt. Both Public Witness 4 Rumal and Pw 5 Sohan Lal have, of course, supported the prosecution case and the trial court came to the conclusion that the suggestion that these two prosecution witnesses were interested in Veer Wati as her relatives was without any basis. This conclusion was arrived at on the ground that none of the witnesses bad specifically been asked as to the nature of relationship, if any, they had with Veer Wati. The trial court disbelieved Dw I Attar Singh who had stated that Veer Wati's husband's sister is married to the brother of Rumal and Sohan Lal is the sister's son (Bhanja) of Rumal. Jt is to be kept in mind that this Attar Singh Dw I is also a close neighbour of the parties. There is evidence on record that the real dispute between the appellant and Veer Wati was in respect of the new jhuggi which she bad raised or was trying to raise by use of a common wall with the appellant. This aspect of the case has been admitted by Veer Wati Public Witness 3 that the appellant bad an objection to the raising of jhuggi jhopri.

(4) The fate of this appeal, in fact, hinges on the fact whether the testimony ofPW4 Rumal and PW3 Sohan Lal inspire s confidence or not. This in turn depends upon some of the mysterious aspects of the case. The trial court disbelieved that these two persons are related to Veer Wati but from a close scrutiny of evidence one can very easily find out that even if they are not related to her they are somehow interested in her and are inimical towards the appellant. It is not possible to believe that the appellant would set the jhuggi on fire within the sight of these two witnesses only to create evidence against himself. It is suggested by both these witnesses that they apprehended the appellant on spot while committing the offence and created their cries attracted a number of neighbours who extinguished the fire. Strangely, the court is required to trust these two witnesses and not a single neighbour has been brought to the witness-box, at least to state that they did help in extinguishing the fire and that the appellant bad been apprehended by these two persons. Even on this aspect of the case none else excepting these two witnesses have been examined and trusted. One can only guess why it has been done.

(5) The stand of the appellant is that on the day of incident at about 3.30 p.m. Veer Wati was trying to take possession of his wall which he objected to but Veer Wati and all the relations of Veer Wati including Rumal attacked him as a result of which he received injuries and when he went to report the matter to police, he was made to sit there. His further stand is that after some time 10 or 12 persons from the opposite side reached the police station and after S.I. Dayal Singyh talked to them, be demanded Rs. 1500.00 from him and also told him that in case he does not do so, he will be involved in a false case. He has further stated that in fact he was initially arrested under sections 107/151 Cr. P.C. but was falsely implicated in this case.

(6) The fact that there was a dispute of the nature between Veer Wati and the appellant is undisputed. The stand of the appellant, to my mind, is fortified by the fact that the appellant had received injuries. This is a matter which even Dayal Singyh S.I. Public Witness 6 has admitted. There is no mention either in the Fir or the statements of two star witnesses Public Witness 4 and Public Witness 5 about the appellant having sustained injuries which shows that there was a deliberate and sustained attempt on the part of these two witnesses to suppress this fact. That in itself is a circumstance which goes to show that they are interested people and some other kind of incident bad taken place. In fact, the appellant was also referred to the doctor and it is indicated by the document Ex. Public Witness 6/D. This document is cryptic and does not give the number of injuries. It was for the first time that Dayal Singyh Public Witness 6 noticed injuries on the person of the appellant that be made an attempt to explain the same and in this document Ex. Public Witness 6/D be says that possibly these injuries were received by the appellant in an intoxicated condition while be was being apprehended. One can understand the dilemma in which Dayal Singh was put after he noticed the injuries on the person of the appellant. He bad to coin some sort of explanation and did it. This circumstance was brought to the notice of the learned trial judge. He accepted the proposition of the defense that there were injuries sustained by the appellant but by a strange and curious reasoning suggested that there is no obligation cast upon the prosecution to explain the injuries sustained by an accused. This is a proposition which is not supported by any law. Acutely conscious of this the learned trial judge then goes on to state that since PWs 4 and 5 have stated that the appellant tried to run away from the spot when he was apprehended, it cannot be ruled out that in the process he may have received these injuries. This is very strange way of dealing with a most important and vital aspect of the case. The trial court can neither imagine as to how the injuries were received by the appellant nor can it subject them to its judgment based on surmises and conjuctures. This is an aspect of the case which the prosecution is duty bound to explain and the explanation that is tendered must be sound before it is accepted.

(7) Considering the peculiar circumstances of this case together with the stand of the accused and the fact the appellant bad sustained injuries which were not explained, the whole case against him becomes doubtful. After all there is no magic wand in the hand of the appellant to prove his innocence. The stand which the appellant takes can only be probablised by him by reference to the circumstances of the case and to bring it to the notice of the court that all that the prosecution states is not true. All these circumstances taken together bad probablised the defense of the appellant that in fact be was beaten up and be had gone to police station to make report about it and ultimately found himself be involved in this case.

(8) Having given my anxious consideration to the facts and circumstances of this case and having made the aforesaid observations I am of ibe view that the conviction and sentence of the appellant cannot be sustained. The appeal is allowed and the conviction and sentence under section 436 Ipc passed against the appellant is set aside. The appellant shall be released forthwith unless wanted in some other case. Fine, if paid by the appellant, shall be returned to him.

(9) In view of this order, criminal miscellaneous application No. 28 of 1987 for bail has become infructuous and stands disposed of.